USCA11 Case: 22-10010 Date Filed: 06/15/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10010
Non-Argument Calendar
____________________
DEVON A. BROWN,
Plaintiff-Appellant,
versus
FLORIDA DEPARTMENT OF REVENUE OFFICE OF CHILD
SUPPORT ENFORCEMENT,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cv-20171-MGC
____________________
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2 Opinion of the Court 22-10010
Before LUCK, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Devon Brown appeals the dismissal with prejudice of his suit
against the Florida Department of Revenue Office of Child Support
Enforcement. Filing pro se, Brown challenged a Department child
support enforcement action, alleging various fraud and constitu-
tional claims. The district court granted the Department’s motions
to dismiss under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) based on the following grounds: (1) failure to comply with
the district court’s previous order as a precondition to filing suit;
(2) the Department’s entitlement to Eleventh Amendment sover-
eign immunity; and (3) Brown’s failure to otherwise state a claim
upon which relief could have been granted. After careful consider-
ation, we conclude that the Department is immune from suit under
the Eleventh Amendment. Accordingly, we affirm the dismissal
but remand so that the district court may enter the dismissal with-
out prejudice.
I. BACKROUND
Brown has been challenging the Department’s child support
enforcement actions since 2015. To that effect, he has filed eight
lawsuits in the District Court for the Southern District of Florida
against the Department and other state agencies, related to his
child support obligations. In the suit giving rise to this appeal,
Brown alleged that the child support enforcement action against
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22-10010 Opinion of the Court 3
him was fraudulent and violated his due process rights. He also ar-
gued that child support enforcement was generally unconstitu-
tional.
But as we explained above, this is neither Brown’s first time
suing the Department nor his first time before us on appeal. In
2017, a district court dismissed a previous suit without prejudice on
the same Eleventh Amendment grounds the Department relies
upon today, and we affirmed that dismissal. Brown v. Fla. Dept. of
Revenue Off. of Child Support Enf’t., 697 F. App’x 692 (11th Cir.
2017) (Brown I). In yet another lawsuit, filed two days after the dis-
trict court’s initial dismissal in Brown I, the district court again dis-
missed Brown’s claims, this time identifying him as “a repeat filer
of frivolous suits in the Southern District of Florida.” Order Dis-
missing and Closing Case, Brown v. Fla. Dept. of Revenue Off. of
Child Support Enf’t., No. 1:17-cv-21187-CMA (S.D. Fla., Mar. 31,
2017) (Brown II). Alongside its dismissal, the district court in Brown
II ordered the clerk “not to accept any future filings from [Brown]”
unless certain conditions were met. Id. The order stipulates that
Brown may file a suit if he either: “(1) pays the filing fee; (2) affirms
under oath that he is in imminent threat of serious physical injury;
(3) is represented by counsel; or (4) obtains leave of court to file.”
Id. In the appeal before us today, the district court dismissed a third
suit with prejudice for failure to comply with the Brown II order.
It also articulated two alternative rationales for dismissal: (1) that
the Department was entitled to Eleventh Amendment sovereign
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4 Opinion of the Court 22-10010
immunity, and (2) that Brown failed to state a claim under Rule
12(b)(6). Brown timely appealed pro se.
II. STANDARD OF REVIEW
We review de novo a district court's conclusion regarding
Eleventh Amendment immunity. Abusaid v. Hillsborough Cnty.
Bd. of Cnty. Comm'rs,
405 F.3d 1298, 1303 (11th Cir. 2005).
III. DISCUSSION
“[O]nce a federal court determines that it is without subject
matter jurisdiction, the court is powerless to continue.” Univ. of S.
Al. v. Am. Tobacco Co.,
168 F.3d 405, 410 (11th Cir. 1999). Thus,
when we conclude that a jurisdictional bar applies in a cause, the
“only function remaining . . . is that of announcing the fact and dis-
missing the cause."
Id. (quoting Ex parte McCardle,
74 U.S. 506,
514 (1868)). The Eleventh Amendment is an “explicit limitation on
federal jurisdiction,” barring claims against state defendants in fed-
eral court by its own citizens or citizens from other states. Raygor
v. Regents of the Univ. of Minn.,
534 U.S. 533, 541 (2002) (quoting
Pennhurst State Sch. and Hosp. v. Halderman
465 U.S. 89, 99 n.8,
118–19 (1984)). Because the Department is a state agency, it is enti-
tled to immunity from civil actions under the Eleventh Amend-
ment in federal court. Schopler v. Bliss,
903 F.2d 1373, 1378 (11th
Cir. 1990) (“[T]he Eleventh Amendment extends to state agencies
. . . .”); Nichols v. Al. State Bar,
815 F.3d 726, 733 (11th Cir. 2016)
(“Given that the State Bar is an arm of the state entitled to Eleventh
Amendment immunity, the district court properly dismissed
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22-10010 Opinion of the Court 5
Nichols’s § 1983 action without prejudice for lack of subject matter
jurisdiction.”). Although a state may waive its Eleventh Amend-
ment immunity or consent to suit, neither of those exceptions ap-
plies here. See generally Gamble v. Fl. Dep't of Health & Rehabili-
tative Services,
779 F.2d 1509 (11th Cir. 1986) (dismissing a suit
against a Florida agency, holding that Eleventh Amendment im-
munity applied, and rejecting the argument that Florida waived
their immunity from suit in federal civil rights actions).
Our conclusion that the Department is immune from suit
leaves us without jurisdiction to further consider Brown’s claims,
so we affirm the district court’s dismissal under Rule 12(b)(1) on
that ground. Because it dismissed Brown’s suit for lack of subject
matter jurisdiction, however, “the district court should have dis-
missed the complaint without prejudice[.]” Stalley ex rel. United
States v. Orlando Reg'l Healthcare Sys., Inc.,
524 F.3d 1229, 1235
(11th Cir. 2008). Thus, “we remand in part so that the district court
can reenter its dismissal order without prejudice.”
Id.
Lastly, we note that Brown remains subject to the require-
ments of the court order issued in Brown II. See generally Miller v.
Donald,
541 F.3d 1091 (11th Cir. 2008).
IV. CONCLUSION
For the foregoing reasons, the district court’s judgment is
AFFIRMED IN PART AND REMANDED IN PART.
